Admissibility of Spyware Evidence in Divorce Proceedings

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By National Legal Research Group

Published: March 22, 2005

As computers and other forms of electronic communication have become ubiquitous in modern society, it has become much easier to follow their electronic tracks. In cases where a marriage is breaking down, it is often hard for a spouse to resist the relative ease of intercepting or spying on the electronic communications of the other spouse, either to verify suspicions or in order to gain ammunition for the eventual divorce proceedings. However, despite the wealth of potentially incriminating information that a spouse may acquire in this manner, there are numerous obstacles to the use of this information, including the possibility of criminal prosecution. In general, the interception of a spouse's electronic communications may run afoul of state and federal wiretapping statutes such as the Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. §§ 2510 et seq.

The Court of Appeal of Florida, Fifth District, recently addressed a spouse's ability to use such intercepted electronic messages in a pending divorce action. In O'Brien v. O'Brien, 2005 WL 322367 (Fla. 5th Dist. Ct. App. 2005) http://www.5dca.org/Opinions/OpinionFrameset.htm , after the parties' marital relationship began to deteriorate, the wife installed a spyware program on the husband's computer. The program took snapshots of what was on the computer screen and enabled the wife to capture and record all chat conversations, instant messages, e-mails sent and received, and the websites visited by the user of the computer. The program allowed the wife to discover the husband's online chats with another woman. After learning of the wife's actions, the husband obtained a permanent injunction preventing the wife from using the intercepted communications during their divorce proceedings.

The appellate court affirmed the granting of the injunction, finding that the wife's actions had violated Florida's wiretapping statute, Fla. Stat. Ann. § 934.03. The purpose of the statute, the court noted, was "to protect every person's right to privacy and to prevent the pernicious effect on all citizens who would otherwise feel insecure from intrusion into their private conversations and communications." However, while the wife's actions had violated the statute, the court noted that the Florida wiretapping statute, much like the federal statute, only barred the admission into evidence of intercepted oral or wire communications, not electronic communications. Fla. Stat. Ann. § 934.06. Despite this provision, the court still upheld the trial court's decision to exclude the intercepted evidence. The court held that the wife's actions were necessarily illegal under the statute and that the trial court had the discretion to exclude illegally obtained evidence.

While the admissibility of intercepted electronic communications in a divorce proceeding is dependent on a state's particular law, it is clear from O'Brien that even if such evidence is admissible it still may be excluded at the court's discretion because it was obtained illegally.

David Cotter is a Senior Attorney of the National Legal Research Group, the nation's oldest and largest research firm for attorneys.

Last modified: June 21, 2005 - 09:21 PM